Zammutt-Cook, R v

For a qualifying third dwelling-house burglary, Powers of Criminal Courts (Sentencing) Act 2000 section 111 requires a minimum term of three years unless particular circumstances make that unjust. That minimum does not fix the proper starting point where the offender’s overall criminality calls for a higher sentence.

Offences taken into consideration should generally aggravate the sentence for the index offences. A large number may justify a sentence outside the usual category range, subject to totality. Although a court may show mercy, it must give proper weight to serious antecedents, the nature of the burglaries and repeated offending. Personal mitigation may lose substantial force after earlier opportunities have failed to prevent further crime.

The Solicitor General referred the concurrent sentences of 29 months’ imprisonment imposed at Chelmsford Crown Court on 19 January 2018 for three dwelling-house burglaries. The offender had also asked the court to take 24 further dishonesty and burglary offences into consideration.

The offences included extensive water damage after copper piping and radiators were removed, a burglary in which the householder encountered the offender, and the theft of jewellery and personal items. The offender had numerous previous convictions, including dwelling burglaries and a previous sentence under Powers of Criminal Courts (Sentencing) Act 2000 section 111.

The central issue was whether the sentencing judge’s three-year starting point, reduced for guilty pleas to 29 months, was unduly lenient in light of the offender’s antecedents, the index offences and the TICs.

1. The reference was allowed. The overall sentence of 29 months’ imprisonment was unduly lenient.
2. Powers of Criminal Courts (Sentencing) Act 2000 section 111 applied. It required a minimum term of three years for the qualifying third dwelling burglary unless particular circumstances made that unjust. No such circumstances were suggested. The statutory minimum was therefore available as a starting point, but it did not make a three-year starting point appropriate on the facts.
3. The court applied the guideline treatment of offences taken into consideration. Once the starting point for the index offending is fixed, TICs should generally aggravate the sentence. A large number may justify moving outside the category range, subject to totality. The 24 TICs demonstrated the offender’s overall criminality.
4. The judge was entitled to recognise remorse and efforts to address drug addiction, and judges may properly impose merciful sentences. However, the offender’s extensive and persistent burglary history, previous custodial sentences, the seriousness of the three burglaries, and the TICs made a three-year starting point significantly too low. Earlier opportunities and mitigation had failed to curb his offending, so that mitigation had reduced force.
5. The proper starting point was five years. Applying the 25 per cent guilty-plea reduction stated by the court produced a term of 45 months. Leave was granted and each 29-month sentence was substituted with a sentence of 45 months’ imprisonment.

• Court of Appeal (Criminal Division): On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the court allowed the reference and substituted 45-month sentences for the original sentences: [2018] EWCA Crim 1335.
• Chelmsford Crown Court: On 19 January 2018, Her Honour Judge Lynch QC imposed concurrent terms of 29 months’ imprisonment for three dwelling-house burglaries.